PLEADINGS, PRACTICE AND PROCESS AT LAW 2833

user and ownership, other than enclosure, may be given in evidence to the
jury to prove possession.

Except for omission of courses and distances it would not have been necessary in
action of trespass q. c. f., to have offered a patent in evidence in view of this section.
Since plaintiffs and those under whom they claim held title to lot since 1855, law would
presume a patent. Malone v. Long, 128 Md. 381.

This section is constitutional and valid, but being in contravention of common law
will not be construed very liberally. Proof of possession. What amounts to acts of
user and ownership? Possession is a question of law to be determined upon the facts.
Evidence. Thistle v. Frostburg Coal Co., 10 Md. 144. And see Safe Deposit Co. v.
Marburg, 110 Md. 414.

This section so far as it applies to trespass, q. c. f., does not alter law save to enlarge
evidence to prove adversary possession; it does not diminish time in which to establish
a possessory title. Ridgely v. Bond, 17 Md. 23.

The portion of this section dispensing with the necessity of actual enclosure, applied.
Warner v. Hardy, 6 Md. 539.

The rule requiring the plaintiff to show a good legal title is gratified by the proof of
a title prima facie good. Joseph v. Bonaparte, 118 Md. 594.

Although actual enclosure is not necessary to prove possession, when one is erected
by a party relying on title by prescription, it is some evidence tending to show the
character of his claim. Storr v. James, 84 Md. 290.

This section will not be construed retroactively so as to divert title to property
acquired before its passage. Newman v. Young, 30 Md. 420; Thistle v. Frostburg Co.,
10 Md. 144; Safe Deposit Co. v. Marburg, 110 Md. 414.

This section referred to in discussing the law prior to its adoption. Lurman v.
Hubner, 75 Md. 270; Carter v. Woolfork, 71 Md. 286; Baker v. Swan, 32 Md. 358;
Thistle v. Frostburg Co., 10 Md. 129; Houck v. Loveall, 8 Md. 70; Hoye v. Swan,
5 Md. 237; Mitchell v, Mitchell, 1 Md. 52.

See sec. 26, and notes to sec. 76.

As to adverse possession as a bar to title under patents, see art. 57, sec. 10.

An. Code, 1924, sec. 85. 1912, sec. 80. 1904, sec. 80. 1888, sec. 77. 1852, ch. 177, sec. 3.

1924, ch. 435.

85. No warrant of resurvey shall issue in any action of ejectment
unless the Court shall be satisfied that there is a dispute about the loca-
tion of the lands claimed in said action; nor shall any issue in other actions
unless there is a dispute about the location of the lands for the injury of
which damages are claimed, or unless the Court shall be satisfied that plats
are necessary for illustration; and all warrants or resurvey shall hereafter
issue to the surveyor alone, and all the duties heretofore performed by
the Sheriff in official surveys under warrants of resurvey issuing from the
Court shall be performed by the surveyor.¹

This section made radical changes in the practice. The court may, when it is satis-
fied that there is a dispute about boundaries, order a warrant of re-survey to be is-
sued although defendant has not taken defense on warrant; when a warrant is so issued,
the practice applicable to surveys made after defense on warrant is taken, applies. The
defendant may no longer take defense on warrant as a matter of right, and have a
re-survey of the disputed land. Application must be made to court and warrant can
only issue on its order or by agreement of parties. Under section 87 the warrant may be
taken out at the instance of eit'her party. The foregoing statements apply in an action
of trespass q. c. f. Evidence. Andrews v. Pitts, 126 Md. 333.

An action of trespass q. c. f. is often resorted to in trying titles to land, and in actions
involving locations it is much more satisfactory to have a warrant of re-survey under
this and the following sections. B. & O. R. R. Co. v. Silbereisen, 121 Md. 419.

It is encumbent upon party applying .for warrant of resurvey to furnish satisfactory
evidence that there is a bona fide dispute about location of property or division line
thereof. Where description of land sued for is identical with that claimed by defendant,
and where both parties claim title from a common source, there is no necessity for
issue of such warrant. Kelso v. Stigar, 75 Md. 394. And see Walsh v. McIntyre, 68 Md.
421. Cf. Parker v. Wallis, 60 Md. 21.

Purpose of this section. This section referred to in deciding that adverse possession
cannot be made out by showing that one set of tenants occupied one undefined part
of tract, and another set, another part. Hackett v. Webster, 97 Md. 411; Kelso v.
Stigar, 75 Md. 394.

¹ Sec. 2 of ch. 435 of acts of 1924 repeals all laws in conflict with said act to extent of
such conflict.